by Prince Adewale Oreshade
We Nigerians, more often than not, fail
to remember that Nigeria is a Nation of Laws. What does that expression
mean? It means that Nigeria was made out of Laws by the People. And that
is why the Preamble of our 1999 Constitution provides that:
We the people of the Federal Republic of Nigeria;
Having firmly and solemnly resolved, to live in unity and harmony as one indivisible and indissoluble sovereign nation under God, dedicated to the promotion of inter-African solidarity, world peace, international co-operation and understanding;
And to provide for a Constitution for the purpose of promoting the good government and welfare of all persons in our country, on the principles of freedom, equality and justice, and for the purpose of consolidating the unity of our people;
Do hereby make, enact and give to ourselves the following Constitution…
And the constitution went further to state in Section 1 Subsection 1 that:
This Constitution is supreme and its provisions shall have binding force on the authorities and persons throughout the Federal Republic of Nigeria.
I hope you have internalized the purport
of the above, but if you haven’t, what it all means is that, any act,
pronouncement, precedence or custom of any kind whatsoever that goes
against the express provisions of the constitution or any of its
establishment shall be null and void to the extent of its inconsistency.
And that was expressly stated in the constitution too. Same Section 1 provides in its Subsection 3 that:
If any other law is inconsistent with the provisions of this Constitution, this Constitution shall prevail, and that other law shall, to the extent of the inconsistency, be void.
Thus, any act done by any person or
authority in Nigeria must be traceable to the Constitution. Having
understood all that, the first thing that comes to mind in this INEC
quagmire is to seek for the establishment of INEC.
Section 153 subsection 1 paragraph of of the Constitution provides for that. It states that:
153.
(1) There shall be established for the Federation the following bodies, namely:
(a) Code of Conduct Bureau;
(b) Council of State;
(c) Federal Character Commission;
(d) Federal Civil Service Commission;
(e) Federal Judicial Service Commission;
(f) Independent National Electoral Commission;
(g) National Defence Council;
(h) National Economic Council;
(i) National Judicial Council;
(j) National Population Commission;
(k) National Security Council;
(l) Nigeria Police Council;
(m) Police Service Commission; and
(n) Revenue Mobilisation Allocation and Fiscal Commission.
(2) The composition and powers of each
body established by subsection (1) of this section are as contained in
Part 1 of the Third Schedule to this Constitution.
That provides for the formation of INEC.
Section 14 Subsection 1 Paragraph a of Part One of the Third Schedule
at its Paragraph f provides for the Chairman. It states that:
14. (1) The Independent National Electoral Commission shall comprise the following members -
(a) a Chairman, who shall be the Chief Electoral Commissioner;
Now that we know how INEC and its
Chairman came about, let’s see how the Chairman can be removed as stated
in the Constitution. Section 157 Subsection 1 and 2 states that:
157. (1) Subject to the provisions of
subsection (3) of this section, a person holding any of the offices to
which this section applies may only be removed from that office by the
President acting on an address supported by two-thirds majority of the
Senate praying that he be so removed for inability to discharge the
functions of the office (whether arising from infirmity of mind or body
or any other cause) or for misconduct.
(2) This section applies to the offices
of the Chairman and members of the Code of Conduct Bureau, the Federal
Civil Service Commission, the Independent National Electoral Commission,
the National Judicial Council, the Federal Judicial Service Commission,
the Federal Character Commission, the Nigeria Police Council, the
National Population Commission, the Revenue Mobilisation Allocation and
Fiscal Commission and the Police Service Commission.
Note this Section 157 above, we will be
referring to it soon, but first, let’s see how the constitution defined
Misconduct. Section 161 Paragraph d states that:
161. In this Part of this Chapter, unless the context otherwise requires -
(d) “misconduct” means a breach of the
Oath of Allegiance or oath of office of a member or a breach of the
provisions of this Constitution or bribery or corruption or false
declaration of assets and liabilities or conviction for treason or
treasonable felony.
On Three Months Leave, here is what the 2008 Federal Government Public Service Rules Number 100238 of its Chapter 2 state:
100238 – Officers are required to give
three months notice to retire from service before the effective date of
retirement. At the commencement of three months, officers should proceed
immediately on the mandatory one-month pre-retirement workshop/seminar.
For the remaining two months, retiring officers are expected to take
necessary measures to put their records straight so as to facilitate the
speedy processing of their retirement benefits.
And Section 1 of the same Chapter defines Leave as:
100101-”Leave” is the authorized absence of an officer from duty for specific period as provided for in this Chapter.
What all the above stresses is that the
seat of someone that is on Leave cannot be deemed empty, except he is
guilty of misconduct, or he is of unsound mind. So, should someone else
be appointed to occupy one’s seat because one is at a seminar? Can’t the
seminar be shifted to his last month? And what, in fact, is this
seminar about? What?
Section 157 above states clearly when
and why the Chairman’s seat can be deemed empty, and it also went
further to define ‘misconduct’. It didn’t leave it at that, it went
further to outline the process that must be followed for that to occur.
In buttressing the point that the
beginning of one’s leave signifies the termination of one’s appointment,
I have read essays that call on ‘precedence of customary practises’ as
their authority. As much as such precedence does not hold water if it is
not Law, let’s examine the case of Professor Maurice Mmaduakolam Iwu
that’s fondly referred to.
Prof Iwu assumed office on the 13th of
June, 2005, and because it’s a 5 year term, he was to leave office on
June 13, 2010. But based on the ‘order’ of the then acting President
Jonathan, he went on ‘terminal leave’ on the 28th of April, 2010.
It must be noted that Jega was nominated
on the 8th of June, and Senate confirmed the nomination on the 24th of
June, 2010. What this means is that Jega did not assume office till the
tenure of Iwu ended.
But let’s take a closer look at why Iwu
had to go on ‘terminal leave’, or more appropriately, as the Short Title
of the rule refers to it -’Three Months Pre-Retirement Leave’.
Iwu was born on the 21st of April, 1950,
and that means that on the 21st of April, 2010, Iwu clocked 60. And Iwu
was only told to go on Leave on the 28th, of April, 2010. What this
means is that, Iwu ordinarily should have been on Leave from the 1st of
April, or better still, the 13th of March. On the face of it, he was due
to be on Leave.
Iwu was also guilty of one more thing.
Rule 020810 at Chapter 8 of the Public Service Rules states that:
020810 – (i) The compulsory retirement
age for all grades in the Service shall be 60 years or 35 years of
pensionable service whichever is earlier.
(ii) No officer shall be allowed to
remain in service after attaining the retirement age of 60 years or 35
years of pensionable service whichever is earlier.
So you see? Iwu’s seat can be lawfully
deemed empty from the 21st of April, 2010; that being the day he clocked
60. I hope this has shown how ‘precedence of customary practices’
doesn’t hold any water with respect to Professor Attahiru Muhammadu
Jega’s case. Jega was born on the 11th day of January, 1957, that made
him 58 couple of weeks ago.
But if you are of the moderate Leftists
that believe that Jega should still go on a Leave where he will use an
entire month to attend one seminar, and two months to put his ‘records
straight’ while the Nation and the States are on the brink of deciding
who their next leaders will be, then there is going to be an immediate
need to appoint an acting Chairman.
Not only is this choice as unintelligent
as those that think the seat is vacant because he is on Leave, it
doesn’t take into consideration the weight of the workload that the
successor will inherit from the very moment he assumes office. The lack
of experience, expertise and existing schedules.
But let’s leave that aside, and look into what it will take to appoint an acting chairman. The Public Service Rules states that:
020601 – When it is necessary that a
particular duty post (of status not lower than Senior Clerical Officer)
should continue to be filled at a time when no officer of corresponding
substantive rank is available for posting thereto, some other officer
may, with the approval of the Federal Civil Service Commission, be
formally appointed, by notice in the gazette, to act in the duty post
and assume either fully or in part, the duties and responsibilities
thereof.
020602 – The mere fact that the
substantive holder of a duty post will be absent there from for a short
period (e.g. on casual leave or on sick leave) does not in itself
justify an acting appointment; there may however be circumstances (such
as compliance with statutory provisions) which necessitate the making of
an acting appointment for a relatively brief period.
The decision whether an acting
appointment is necessary or desirable in any particular case will rest
with the Federal Civil Service Commission.
020603 – Acting appointments are not
intended as a means of testing the suitability of officers for
promotion; they will normally be made only in order to fill posts that
are temporarily vacant and their duration should be limited accordingly.
020604 – Recommendations for acting
appointments must be forwarded to the Federal Civil Service Commission
on General Form 66 and must include thereon a certificate to the effect
that the acting officer will assume the full duties and responsibilities
of the post in question. Approved acting appointment will be gazetted
by the Federal Civil Service Commission but it will on no account be
back-dated to a period in excess of six months of the date of receipt of
the recommendation by the Commission
020605 – The date on which an acting appointment commences will be indicated in the gazette notice authorizing the appointment.
I think that’s self explanatory. To add
to it, the bureaucratic chaos that this will cause, just because we want
the present Chairman to go and attend a seminar that we don’t know what
it is going to be about, to me, is not only outrageous, it is
ridiculous too. What is this seminar going to be about? How to shake
hands whilst leaving office, or what?
Now I hear rumors that one Professor
Nazim Olufemi Mimiko a professor of Political Science and International
Relation and a former VC of Adekunle Ajasin University, Ondo State has
been nominated to the Senate and is due to assume office on the 1st of
March, 2015.
How else does one tell the President
that Leave does not mean Termination? The same President in the Sanusi
Lamido’s case believed that Suspension means Termination. Section 157
above is clear on how the Chairman can be removed.
People ask me why Jona shouldn’t return,
this is why. This! The way he slaps Nigerians and her Constitution like
we were born yesterday. Let someone tell him that, we weren’t born
yesterday, and even if we were, we weren’t born at night, and even if it
was last night, we weren’t born in the dark. We are enlightened. We
know enough to know that we do not want him to continue.
He is not only usurping the powers of
the Legislators, he is breaching the Constitution that he swore to
protect. That in itself is an impeachable act.
+++++
Links to the Constitution and Public Service Rules -
http://www.nigeria-law.org/ConstitutionOfTheFederalRepublicOfNigeria.htm#EstablishmentOfCertainFederalExecBodies
http://resourcedat.com/wp-content/uploads/2012/06/public-service-rules.pdf
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